Articles Posted in Field Sobriety Tests

As discussed in the previous blog, you will be asked certain questions by an officer during a routine DUI stop. An officer needs probable cause for intoxication before he can arrest you for suspicion of driving under the influence. Admissions by the driver and observations made by an officer are just two of the ways an officer can suspect that a person is intoxicated. These will give the officer the probable cause needed to be arrested. These were discussed in the previous blog, Probable Cause During a Los Angeles DUI Stop – Part One. In this second part we discuss additional ways an officer can obtain probable cause.

  1. Field Sobriety Tests

If an officer feels that it is necessary, they can ask that you submit to a field sobriety test. There are several different test that can be administered.

When a person has been stopped for suspicion of driving under the influence of alcohol and/or drugs, they will be asked to submit to a blood alcohol test. Two tests will be administered. One is at the scene of the stop and the other will be at the station.

The test administered at the scene of the stop is voluntary and the driver should be informed of that. It is generally a breath test and is referred to as a preliminary alcohol screening test. If the driver refuses this test, there are no adverse consequences, other than that the driver will most likely be taken into custody.

The second test administered at the police station following an arrest is still voluntarily, but a refusal carries with it some serious consequences. The test may be either a breath or blood test, and if it is refusal and the driver is subsequently found guilty of a DUI, they will face an enhanced sentence.

On August 29, 2013 former Laker player and husband of Khloe Kardashian, Lamar Odom, was pulled over on suspicion of driving under the influence of alcohol. Mr. Odom was stopped by officers for going too slow on the San Fernando freeway and driving in a “serpentine manner”.

Officers stated that they smelled alcohol on Mr. Odom’s breath and based on their observations arrested for driving under the influence of alcohol. They further state that no alcohol or drugs were found in his vehicle.

For officers to pull a driver over they must first have reasonable cause. Reasonable cause arises from a general traffic violation, or from a welfare stop. A general traffic violation would be failing to stop at a red light, speeding, or in Mr. Odom’s case, driving too slow and weaving. Officer may also get probable cause from a welfare stop. A welfare stop is when the person is pulled over at the side of the road or highway, and officers stop to check is everything is alright or if the driver needs help.

A driver must have committed a traffic violation or otherwise for an officer to pull the person over. In order for an officer to request the driver to submit to an alcohol screening test, they must have reasonable suspicion. For example, if a driver is following all traffic safety laws, the officer has no reason to pull the driver over. If the driver exhibits no signs of being under the influence of any substance, including alcohol, and does not admit to having been under the influence, the officer does not have authority to request a drug or alcohol screening test.

The driver may then be asked to submit to a blood test if the officers believe they may be under the influence of additional substances. However, they gain their initial authority to request an alcohol screening test because of the use of alcohol. Once the blood test results come back, and they demonstrate drug use, the driver may then have additional evidence against him, even though the driver was initially pulled over and test for alcohol alone.

Thissconcept is best described through an example. Dana has two beers at a friend’s place. She also takes more than the allotted dose of sleep medicine. She hasn’t been sleeping well lately and decides that if she takes the medication prior to leaving her friend’s place, by the time she gets home she will be ready to fall asleep. Dana speeds on the way to her house. She is pulled over by an officer for speeding (valid traffic violation). The officer smells the beer on her breath and asks her if she has been drinking. Dana responds yes, that she has had two beers (reasonable suspicion by admission). The officer then asks her to submit to a field sobriety test. Dana assumes that she has only had two beers so her BAC is low, and she will easily pass the tests and readily submits. She blows a .02.

Many of our clients mistakenly believe that a DUI charge is based on their admission of having been drinking. Although their admissions contribute to a huge part of prosecution, a person may still be charged with a DUI, even when they have chosen to remain silent.

When an officer first chooses to have you pull over, he must have a reasonable cause for doing so. A majority of the time it is because the driver has committed a traffic violation. This can be anything from speeding, to and illegal U-turn. Regardless of the offense, it gives the officer grounds to pull you over.

In some situations, the driver may already be pulled over. For example, he may have started driving and felt that he was impaired so he has pulled over. Or there may be car trouble or an accident that has caused the driver to stop on the street or the highway. When a driver is already pulled over, the officer will conduct what is known as a welfare check. The driver does not have to have violated the traffic code, or committed any other offense for the officer to come check up on the driver.

Contrary to popular belief,sa field sobriety test is not always mandatory in a DUI arrest. The field sobriety test is the blood alcohol test that is required by officers at the scene of the DUI stop. They will often ask if you will blow in a breathalyzer so that they can get a reading on your BAC. Oftentimes many people refuse this test, and there are no consequences for doing so. It is not required, and may give officers additional evidence against you. However, any BAC test administered at the station are recommended to be taken.

Nevertheless, there are some situations in which the field sobriety test maysbe a good idea to take. One such incident is when there may be a rising alcohol defense. The rising alcohol defense is a defense that may be raised by your Southern California criminal attorney that may result in a reduction or dismissal of the charges being brought against you.

A person must be intoxicated at the time they are operating a vehicle for them to be arrested and convicted for driving under the influence. A rising alcohol defense implies that at the time the person was driving, or got behind the wheel, they were not intoxicated. The general assumption is that when a person first starts drinking, the alcohol has not entered their blood stream, and they are not yet intoxicated. They gradually become intoxicated as time passes. Many different factors will also influence how quickly a person becomes intoxicated including metabolism, gender, diet, and tolerance.sSo then, there may be situations in which the person that is driving is not yet intoxicated,sbut may be an hour from ingesting the first drink.

Many of our clients often do not complete the field sobriety tests when they are administered by authorities during a DUI arrest. Many of our clients also feel that they passed the field sobriety tests. Unfortunately, whether or not the person does well on the field sobriety tests or if they refuse to do them, it does not make a significant impact on your DUI case.

The authorities are required to observe a person that has been stopped for suspicion of driving under the influence for 15 minutes. It is in this time period that the officer will administer the field sobriety test. Based on an officer’s opinion, a person will always fail the field sobriety tests. In reality, the officer is simply observing your overall behavior and demeanor for signs of intoxication.

It is easier to understand the kind of observations the officer is making through examples. First let’s consider Dan. Dan is stopped on suspicion of DUI. The officer asks him to step out of the car and asks him to complete the routine field sobriety tests. This includes,sthe Rhomberg test, the Nystagmus Test, and the thirty second test, among the few. As Dan completes these tests, he is slurring, and keeps laughing when he messes up. It is apparent that he does not comprehend where he is and feels that it is just a game. In addition, he smells of alcohol and his eyes are watery and bloodshot.

When you are stopped on suspicion of a DUI, the officers will ask you to complete several field sobriety tests. Many people feel that they do well on the tests and have passed, however the tests are so subjective,sit is questionable as to whether the tests are designed for anyone to pass.

The first test administered is referred to as the nystagmus. The officer will ask you to follow his pen or flashlight from side to side using your eyes. More often than not, people will tend to move their heads to follow the object from left to right. It is natural. However, officers will deem the person as having failed if their head moves even slightly.

Another common test is asking the driver to walk heel to toe 9 steps one way, then 9 steps another. Often this test is administered to people who are standing on an incline, or on a surface that is not even. Additionally, the person taking the test may not be wearing flat shoes, they often are wearing high heels, boots or dress shoes.

When we meet with our clients we go through the entire arrest with them in detail. We want to discuss all pertinent facts and we want to hear the driver’s side of the story so that we can better get to know our clients, and in turn present the story to the Prosecutor so that they see our client as more than just another file number.

One of the most common responses we get is when we ask our clients how they felt they did on the Field Sobriety Tests. The answer is generally, that they did pretty well and felt that they had passed. However, the tests are extremely subjective and designed to fail.

The tests are subjective and are determined to be passed or failed by the officer and his or her observations. In comparison, the breath or blood test to determine blood alcohol content are objective. It does not require anyone to make a conclusive determination based on their own personal observations, it provides a number that is objective.

California Vehicle Code §23152(a) regulates Driving under the Influence of drugs (DUID). This same section also makes it unlawful to be driving under the influence of alcohol. Despite being charged under the same section, both types of cases invoke different arguments and defenses.

Someone is considered to be intoxicated for purposes of a DUI if their Blood Alcohol Level is .08% of higher. This is a objective test and a reading is obtained through the use of simple blood, breath and urine tests. In contrast, there is no objective test for a DUID.

When stopped under the suspicion of a DUID an officer will check for several different subjective signs to include in their report and support their allegation that a person was under the influence of drugs. They will observe your general behavior, and check your pulse and heart rate.